Cell Phones & Sawed-off Shotguns: R v Manley

Over the December holidays, I succumbed to Apple’s iPhone 4: 9.3 mm thin, recyclable aluminosilicate glass, retina display, A4 chip, Camera & LED…it’s everything I ever wanted in a phone! Moreover, I get a solid half an hour of Angry Birds playtime on my subway rides up to Osgoode Hall Law School, conveniently located on York’s Keele campus. After eight years of being anti-smartphone, I revealed my new gadget to a long-time friend over lunch. After handing it over to him, his first comment about my new gadget was, “I’m surprised you haven’t password protected it yet.”

Later that week, after much deliberation over a new 4-digit numerical password that I wouldn’t forget, I password protected my phone. After 10 incorrect password attempts, all the data stored on the phone is erased. Without a password, emails, photos, text messages, agendas, contact list, bank account number – all this data my smartphone contains would be accessible to anyone who obtained access to my phone. However uninteresting this information may be to someone else, it’s not something I want others to see. In legal jargon, I would say I have a reasonable expectation of privacy in the stored data contained in my cell phone.

Say Cheese!

On Valentine’s Day 2011, the Ontario Court of Appeal (“ONCA”) released its decision in R v Manley, 2011 ONCA 128. On November 13th, 2006, the appellant was arrested for the robbery of a music store and outstanding arrest warrant for break and enter. Pursuant to a frisk search incident to arrest, the police seized a cell phone from the appellant’s person. In order to identify the lawful owner of the cell phone, the police opened the phone and in the process searched its stored data. As a result of this search, they found a photograph of the appellant holding a sawed off shotgun taken the day after the music store robbery. The photograph was copied onto a police officer’s cell phone, downloaded to a computer, and printed. A warrant was subsequently obtained to search the contents of the phone.

What Happened on Appeal?

On appeal, one of the issues raised was that the trial judge erred by rejecting the submission that the police breached the appellant’s s. 8 Charter rights by searching the stored data on the cell phone and that the photograph found on the phone should have been excluded under s. 24(2) of the Charter. The ONCA found that the police had a lawful basis to perform a cursory search of the cell phone to determine whether it had been stolen. The basis for this finding was that cell phone was relevant to the offence for which the appellant had been arrested, the break and enter, and the fact that the police had confidential information that the appellant had used stolen phones in the past. The ONCA made it clear that a search of the stored data in the phone could not be justified on the basis that the police were simply trying to determine who owned the phone. It was vital to the decision that the telephone number of the cell phone was identified after the discovery of the photograph; had the discoveries been reversed, the case would have been completely different.

In reaching this conclusion, the ONCA did not outline a comprehensive definition of the powers of the police to search the stored data in cell phones seized upon arrest. However, Sharpe J.A. in obiter noted at para 39:

An open-ended power to search without a warrant all the stored data in any cell phone found in the possession of any arrested person clearly raises the spectre of a serious and significant invasion of the Charter-protected privacy interests of arrested persons. If the police have reasonable grounds to believe that the search of a cell phone seized upon arrest would yield evidence of the offence, the prudent course is for them to obtain a warrant authorizing the search.

The court then upheld that the warrant issued following the finding of the photograph was reasonable. No breach of s. 8 was found.

Thoughts: Scope of the Common Law, Strip Searches & Technology

In the course of an arrest, there is a limited power of the authorities to conduct a search of the individual incidental to the arrest. The common law holds that police have a power to search a lawfully arrested person and to seize anything in his/her possession or immediate surroundings to guarantee the safety of the police, the accused and the nearby public; prevent the prisoner’s escape; or provide evidence against him (ensure evidence found on the accused and in his immediate surroundings is preserved). Considering that the common law search incident to arrest power does include the power to strip search (albeit subject to limitations) it is difficult to see how the privacy interest in one’s cell phone will be put above the privacy interest in one’s body or person.

In order for a strip search to be justified as an incident to arrest, it is necessary that (i) the arrest itself be lawful and (ii) the search must be incident to arrest, i.e., the search must be related to the reasons/purpose for the arrest itself. While a common law search incident to arrest does not require additional grounds beyond the reasonable and probable grounds necessary to justify the lawfulness of the arrest itself, in order to meet the constitutional standard of reasonableness that will justify a strip search, the police must establish that they have reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest.

While I do not think the test for strip searches incidental to arrest should be applied to cell phone content searches incidental to arrest, I do believe that the power to lawfully seize a cell phone incidental to arrest should not include a warrantless power to examine its contents. The only purpose behind the common law power of searches incident to arrest that supports searching the stored data of a cell phone is to ensure that evidence found on the accused and in his immediate surroundings is preserved. Unless there is a link between the cell phone data, the reason for arrest and the purpose behind the common law search power incidental to arrest, police should obtain a warrant in advance.

While the ONCA did not delineate the common law power in this decision, it is inevitable that our courts will have to come up with a solution to this problem. In this decision, Sharpe J.A. notes that “the traditional rules defining the powers of the police to conduct a search incident to arrest have to be interpreted and applied in a manner that takes into account the facts of modern technology.” As personal handheld devices gain more and more computing power, it will be interesting to see how far this search power will extend. In the meantime, until the test is defined, my common sense would indicate that the best option for maximum privacy protection would be to password protect your phone and to not reveal the password to anyone, unless a warrant is produced.